Opinion
07-07-2016
The PEOPLE of the State of New York, Respondent, v. Anthony MARTINEZ, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Courtney M. Wen of counsel), for respondent.
Judgment, Supreme Court, New York County (Charles H. Solomon, J.), rendered August 5, 2014, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third degree, and sentencing him, as a second drug felony offender previously convicted of a violent felony, to a term of 6 years, unanimously affirmed.
The court properly exercised its discretion in granting the People's motion to resubmit the charge to a second grand jury, since “[t]he fact that after the first submission there were insufficient votes to either indict or dismiss was a legitimate reason for a new submission” (People v. Pryor, 5 A.D.3d 222, 223, 772 N.Y.S.2d 823 [1st Dept.2004], lv. denied 3 N.Y.3d 661, 782 N.Y.S.2d 703, 816 N.E.2d 576 [2004] ; see also People v. Credle, 17 N.Y.3d 556, 562, 934 N.Y.S.2d 77, 958 N.E.2d 111 [2011] ). Moreover, the court's exercise of discretion was independently supported by the People's “showing that new evidence ha[d] been discovered” (People v. Jones, 206 A.D.2d 82, 86, 618 N.Y.S.2d 319 [1st Dept.1994], affd. 86 N.Y.2d 493, 634 N.Y.S.2d 38, 657 N.E.2d 1321 [1995] ).
Although “[e]x parte proceedings are undesirable, and they should be rare” (People v. Carr, 25 N.Y.3d 105, 111, 8 N.Y.S.3d 222, 30 N.E.3d 865 [2015] ), defendant was not deprived of his right to counsel by the ex parte filing of the People's affirmation in support of that motion and the court's order granting the motion, given that defense counsel received notice of the People's intention to move to resubmit the charge, and counsel repeatedly objected to the motion (see People v. Taylor, 187 Misc.2d 321, 323–324, 723 N.Y.S.2d 345 [Sup.Ct., Kings County 2011] ; People v. Ladsen, 111 Misc.2d 374, 377, 444 N.Y.S.2d 362 [Sup.Ct., N.Y. County 1981] ).
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations. An officer's delay in recovering a bag of cocaine after observing it was satisfactorily explained and does not warrant a finding that the events described by the officer were inherently implausible.
MAZZARELLI, J.P., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ., concur.